Court of Appeals of Missouri, Western District, Second Division
from the Circuit Court of Clay County The Honorable Shane T.
Before: Alok Ahuja, P.J., and Thomas H. Newton and Mark D.
bench trial in the Circuit Court of Clay County, appellant
Peter Rastorfer was convicted of driving while intoxicated in
violation of § 577.010 RSMo. He was sentenced as a
chronic offender to eight years' incarceration. Rastorfer
appeals. He argues that the State's evidence was
insufficient to convict him of the offense, because the State
failed to prove that he was intoxicated while
operating a motor vehicle. We affirm.
minutes before midnight, on Saturday, October 3, 2015, two
Clay County Sheriff's deputies were dispatched to North
Eastern Avenue and 134th Street in Smithville for
a reported vehicle accident. Upon arrival, Deputy Mary Conrad
saw a white Ford F-350 pickup truck off the side of the
roadway on an embankment. The truck was lying upside down on
its roof. The vehicle was close to and facing the roadway,
with its headlights and tail lights on. Deputy Conrad
described the weather as clear, and the road as straight and
dry with a paved asphalt surface.
was standing near the truck. As Deputy Conrad approached him,
she smelled a "faint" odor of alcohol on his
breath, and noticed that his eyes were bloodshot. Deputy
Conrad testified that, based on her observations, she
believed Rastorfer was intoxicated. Rastorfer declined
medical treatment at the scene.
told Deputy Conrad that he was traveling northbound on North
Eastern Avenue when the passenger side wheels of his truck
went off the side of the road. He said that he overcorrected
and crossed over the center line, went off the opposite side
of the road, and then caught an embankment, which caused the
truck to flip. The truck rolled several times before it came
to rest on its roof next to the road.
Chris Johnson responded to the scene of the accident shortly
after midnight and began a driving while intoxicated
investigation. Deputy Johnson detected a "strong
odor" of alcohol coming from Rastorfer. He also observed
Rastorfer's eyes to be "watery and glassy," and
his balance "swaying and uncertain." Rastorfer told
Deputy Johnson that he had last consumed an alcoholic
beverage 30 minutes earlier. Deputy Johnson testified that
Rastorfer's "hand was bandaged up" due to
"an injury on his hand."
Johnson performed two field sobriety tests: a horizontal gaze
nystagmus (HGN) test, and the walk-and-turn test. He detected
three out of six possible clues of intoxication on the HGN
test. Deputy Johnson testified that the presence of four
clues on the HGN test generally indicates intoxication; but
he explained that he was unable to complete the HGN test, and
did not score Rastorfer's right eye, because Rastorfer
"wouldn't follow my proper instructions" by
visually following the stimulus. Deputy Johnson detected four
out of eight possible clues of impairment on the
walk-and-turn test, and testified that two clues indicates
intoxication. When Deputy Johnson attempted to perform the
one-leg stand test, Rastorfer refused to comply. Following
his investigation, Deputy Johnson arrested Rastorfer for
driving while intoxicated and transported him to the Clay
County Detention Center.
Detention Center, Deputy Johnson read Rastorfer the Missouri
Implied Consent warning, and told Rastorfer that if he
refused to submit to chemical testing he would lose his
driving privileges for one year. Rastorfer refused to submit
response to questioning, Rastorfer admitted that he had been
driving the truck when it crashed. He said he had been
injured in the crash but not "substantially." While
Deputy Johnson was interrogating him, Rastorfer's hand
bled on the counter. Rastorfer said that, "the last
three hours prior to his contact with law enforcement,"
he had been at "dirt track races in Grain Valley."
Rastorfer said that he had consumed five beers on the day of
the accident, between 2:00 p.m. and 10:00 p.m. Rastorfer
admitted that he was under the influence of alcohol at the
time of his questioning by Deputy Johnson.
was charged as a chronic offender with one count of felony
driving while intoxicated. He waived his right to a jury
trial, and the case was tried to the court. The court found
that Rastorfer had been convicted of four or more
intoxication-related traffic offenses and was therefore a
chronic offender under § 577.023, RSMo. The ...